Calderon v. Clearview AI, Inc.

Background

The opinion addresses six related lawsuits pending in the Southern District of New York concerning Clearview AI, Inc.’s alleged scraping of facial images from the Internet, scanning those images, and creation of a searchable biometric database. The actions assert claims under various state laws, including the Illinois Biometric Information Privacy Act, and arise from overlapping factual allegations. No class had been certified in any of the cases, and no defendant had filed an answer or begun formal discovery.

David Mutnick had filed an earlier related putative class action in the Northern District of Illinois. He sought to intervene in the six New York actions under Federal Rule of Civil Procedure 24. If allowed to intervene, he planned to ask the court to dismiss the cases without prejudice, stay them, or transfer them to Illinois under the first-filed rule. The opinion identifies Mutnick’s earlier case by docket number 1:20-cv-512-SC (N.D. Ill.).

Intervention as of right

Rule 24(a)(2) permits intervention as of right when the motion is timely, the proposed intervenor has a direct and legally protected interest related to the case, that interest could be impaired without intervention, and the existing parties may not adequately represent it. The court denied intervention because Mutnick failed to satisfy these requirements.

First, the court held that Mutnick had no legally cognizable interest in other people’s claims under BIPA or other states’ laws. His legally protected interest was limited to his own claims. Because no class had been certified, he had no current right to control the other lawsuits or select lead counsel. The court characterized his asserted interest in controlling the litigation and related attorney fees as too remote and speculative.

The court also noted that Mutnick’s Illinois claims were not identical to all of the New York cases. Some New York plaintiffs asserted claims under California or Virginia law, and Mutnick was the only plaintiff asserting federal constitutional claims based on the theory that Clearview was a state actor. The cases therefore involved different legal issues, partly different proposed class definitions, and potentially different discovery.

Second, the court held that Mutnick had not shown that his interests would be impaired without intervention. The possibility that the Illinois and New York courts might address similar Illinois-law issues differently was not enough. If a class were later certified that included people like Mutnick, the court reasoned, their interests would be protected; if not, Mutnick could continue litigating his own claims. He could also opt out of any certified class and pursue his claims separately.

Third, the court held that Mutnick had not overcome the presumption that existing parties with aligned interests would adequately represent him. His claim that the parties had colluded by agreeing to transfer one case to New York did not establish inadequate representation. The court viewed the choice of New York as a strategy to avoid personal-jurisdiction and venue disputes and proceed to the merits.

Permissive intervention

Rule 24(b) allows a court, in its discretion, to permit intervention when the proposed intervenor’s claim or defense shares a common legal or factual question with the main action. The court found that Mutnick’s case met that shared-question requirement but nevertheless denied permissive intervention.

The court focused on prejudice and delay. Mutnick did not seek to participate in the New York litigation; he sought only to dismiss, pause, or transfer it. The court found that allowing intervention for that purpose would prejudice the existing plaintiffs and defendants, who had chosen to proceed in New York. It also noted that New York was the location where jurisdiction over Clearview and its two principals was uncontested, while jurisdiction over those individuals in Illinois had been challenged.

The court further stated that allowing intervention would not advance the cases’ resolution. It explained that a stay would allow collateral issues to be litigated in Illinois even though those issues would not be raised in the New York cases. The court also stated that, even if intervention had been granted, it would almost certainly have declined to stay or transfer the cases. Among other considerations, six related actions were pending in New York, the claims involved several states’ laws, and New York presented no apparent jurisdictional problem for the defendants.

Disposition

The court denied Mutnick’s motion to intervene under Rule 24(a) and denied his motion for permissive intervention under Rule 24(b). Because intervention was denied, the court did not reach the merits of Mutnick’s proposed request to dismiss, stay, or transfer the cases. The court stated that it intended to consolidate the six actions and proceed with case management.